WILSON v. U.S.

September 13, 2005.

PATRICK WILSON, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge

MEMORANDUM

I. Background

Patrick Wilson, an inmate confined at the Federal Correctional
Institution at Allenwood, Pennsylvania, filed this habeas corpus
action on August 1, 2005, pursuant to 28 U.S.C. § 2241. Named as
respondent is the United States of America. Along with his
petition, Wilson has filed a motion seeking leave to proceed in
forma pauperis in this matter. (Doc. 4.) However, on
September 6, 2005, Wilson submitted the required $5.00 filing
fee. As such, his motion will be denied as moot.

In his petition, Wilson states that he pled guilty to Re-entry
of Removed Alien in violation of 8 U.S.C. § 1326(a)(b)(1) on
October 15, 2002. He states that he was sentenced to 77 months of
imprisonment on February 21, 2003.*fn1 He challenges a 16
point enhancement to his sentence he received as violating the
Sixth Amendment to the United States Constitution. He seeks the reduction of his sentence to the pre-enhancement level
of 8  his base point level. In support of his argument he relies
on the Supreme Court case of United States v. Booker,
___ U.S. ___, 125 S. Ct. 738 (2005) which declared the United States
Sentencing Guidelines to be unconstitutional. He also cites to
the case of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) in
support of his argument. Petitioner states that he did not raise
a "Booker objection" at the time of his sentencing and
acknowledges that the Booker opinion has been found not to apply
retroactively to cases on collateral review. He states that he
has exhausted his remedies with respect to an appeal from his
sentence and a § 2255 motion which he filed. He requests a
resentencing on his crime without the enhancements. Because
Wilson has failed to show that the 28 U.S.C. § 2255 remedy
utilized to challenge his federal conviction or sentence is
inadequate or ineffective to test the legality of his detention,
his § 2241 petition will be denied.

A defendant can pursue a 2241 petition only when he shows that
the remedy under section 2255 would be "inadequate or ineffective
to test the legality of his detention." 28 U.S.C. § 2255; see
also United States v. Brooks, 230 F.3d 643, 647 (3d Cir.
2000). The inadequacy or ineffectiveness must be "a limitation of
scope or procedure . . . prevent[ing] a § 2255 proceeding from
affording . . . a full hearing and adjudication of [a] wrongful
detention claim." Okereke v. United States, 307 F.3d 117, 120
(3d Cir. 2002) (citing Cradle v. United States, 290 F.3d 536,
538 (3d Cir. 2002) (per curiam)). "It is the inefficacy of the
remedy, not a personal inability to utilize it, that is
determinative." Cradle, 290 F.3d at 538 (citing Garris v.
Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)); see also
Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) ("A
prior unsuccessful § 2255 motion or the inability to meet" the
requirements for a second or successive 2255 motion "does not
make § 2255 inadequate or ineffective."); Brown v. Mendez,
167 F. Supp. 2d 723, 727 (M.D. Pa. 2001). If a petitioner improperly
challenges a federal conviction or sentence under § 2241, the
petition must be dismissed for lack of jurisdiction. Application
of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971). In Cradle v. United States, supra., the Third Circuit
emphasized that a § 2255 motion is not inadequate or ineffective
to test the legality of a federal prisoner's detention, so as to
permit the prisoner to seek habeas relief pursuant to § 2241,
merely because the sentencing court had denied relief, because
the one-year statute of limitations had expired, or because the
prisoner was unable to meet the stringent gatekeeping
requirements of § 2255. Rather, the court in Cradle held that
the habeas exception recognized in § 2255 was merely to make sure
that petitioners had a fair opportunity to seek collateral
relief, not to enable them to evade procedural requirements.
Cradle, 290 F.3d at 538-39.

As stated in Dorsainvil, the availability of the § 2241
remedy to challenge a federal conviction is extremely limited.
Dorsainvil, 119 F.3d at 250. A prisoner can pursue habeas
relief under the safety valve clause of § 2255 usually only in a
situation where a subsequent statutory interpretation reveals
that the prisoner's conduct is no longer criminal to avoid a
miscarriage of justice. See Brown v. Mendez,
167 F. Supp. 2d 723, 726-27 (M.D. Pa. 2001).

With the above principles as our guide, it is clear that Wilson
cannot raise his claims in the instant § 2241 petition. First,
merely because his § 2255 motion and subsequent application for a
certificate of appealability were denied,*fn3 this does not
make the § 2255 remedy inadequate or ineffective. Further, Wilson does not demonstrate the emergence of a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that would negate the
criminality of his actions. See 28 U.S.C. § 2244(b)(2)(A);
Dorsainvil, 119 F.3d at 251 (in denying motion for
certification to file a second Section 2255 petition without
prejudice to petitioner filing a Section 2241 habeas corpus
petition because passage of a subsequent law may negate the crime
of which he was convicted, the Third Circuit Court of Appeals
stated in dicta, "[w]e do not suggest that § 2255 would be
`inadequate or ineffective' so as to enable a second petitioner
to invoke § 2241 merely because that petitioner is unable to meet
the stringent gatekeeping requirements of the amended § 2255.
Such a holding would effectively eviscerate Congress's intent in
amending § 2255.").

In the instant case, neither the decision in Booker, nor in
Apprendi, declares that any conduct, previously thought
criminal, is no longer criminal. Apprendi addresses the burden
of proof and the identity of the fact finder with respect to
certain sentencing issues and Booker relates solely to
sentencing issues. As such, these holdings do not fall within the
limited exception recognized in Dorsainvil. Also important is
the fact that neither the Apprendi nor the Booker decisions
have been made retroactive to cases on collateral review. See
United States v. Swinton, 333 F.3d 481, 485 (3d Cir. 2003)
(holding that Apprendi not retroactive on collateral review;
In re Olopade, 403 F.3d 159 (3d Cir. 2005) (finding Booker not
retroactive on collateral review). While neither of these cases
has been made retroactive on collateral review, this also does not make the § 2255 remedy inadequate or ineffective. See
Fraser v. Zenk, 90 Fed. Appx. 428, 2004 WL 413228 at *4 (3d
Cir. March 3, 2004).

In the instant case, Wilson is unhappy with the fact that he
was unsuccessful on his § 2255 motion. He does not claim that he
is innocent of the underlying crime of which he was convicted,
but merely challenges the enhancements to his sentence. He does
not come forth with any change in the substantive law which
negates the criminal activity of which he was convicted, but
rather raises sentencing issues. Based on the foregoing, the
instant situation does not fall within the limited exception
recognized in Dorsainvil which would permit Wilson's § 2241
petition challenging his federal conviction and sentence.
Accordingly, the petition will be denied. An appropriate Order
follows. ORDER

&nbsp; NOW, THIS 13th DAY OF SEPTEMBER, 2005, in accordance with
the foregoing Memorandum, IT IS HEREBY ORDERED AS FOLLOWS:

1. Petitioner's motion to proceed in forma
pauperis in this matter (Doc. 4) is denied as
moot as the filing fee has been submitted.

2. The petition for writ of habeas corpus pursuant to
§ 2241 is ...

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